Seattle attorney questions Kitsap judge's competence, spurs mistrial

Judge Theodore Spearman at an MLK Day celebration in 2009. Spearman, a seven-year veteran of the Kitsap County Superior Court bench, twice fined a high-profile Seattle attorney during a trial that ended with a mistrial last week.

PORT ORCHARD - It's not often a lawyer is nearly sent to jail for his conduct in a Kitsap County courtroom.

Then again, it's also rare for an attorney to accuse a judge of being incompetent during a trial.

But that's what happened this week when John Henry Browne, a prominent Seattle defense attorney representing a man accused of drug crimes, called into question Kitsap County Superior Court Judge Theodore Spearman's ability to administer a fair trial.

Browne and Spearman, who both live on Bainbridge Island, sparred over several of the judge's rulings in the case. Spearman fined Browne twice — $500 each time — and considered keeping him in custody overnight.

In the end, Browne, who had repeatedly asked for a mistrial, refused to go forward with defending his client on ethical grounds. He said the judge's rulings called into question his mental state.

"I do believe that the legal community in Kitsap County knows he has cognitive deficits," said Browne, whose high-profile cases include defending Colton Harris-Moore, the so-called "Barefoot Bandit."

Browne said he will appeal the fines and file a complaint with the Washington State Commission on Judicial Conduct. He will also have to return to Port Orchard this month to appear before Spearman to answer for his own conduct.

According to court clerk records and observers in the courtroom, Browne disobeyed Spearman's orders, giving the judge no choice but to discipline him.

Kitsap County Prosecutor Russ Hauge declined to comment on Browne's actions, but said prosecutors will request that Browne be ordered to pay for the cost of retrying the case, because it was his "intentional conduct" that spurred the mistrial.

Hauge said Spearman has suffered recent health problems, including a heart attack in October 2008 that sidelined him from the bench, but they did not interfere with his abilities on the bench. He called the judge, who has been a member of the superior court bench since 2004, "an extraordinarily well experienced lawyer."

"We have no issues with Judge Spearman's performance," Hauge said, adding that if prosecutors "thought there was some problem, we'd do something about it."

Spearman, along with the entire Kitsap County Superior Court bench, declined to comment on the case, because it is an ongoing matter.

Browne was defending Dominic Briceno, who had been accused by county prosecutors of six drug-related felonies before trial, including the rare charge of leading organized crime. Briceno had been arrested in December 2009 at the Suquamish Clearwater Casino.

His trial started in June, then recessed for more than two weeks due to scheduling conflicts among the lawyers.

Spearman had fined Browne before the recess for failing to abide by an earlier motion to keep objections to a single word. In order to avoid prejudicing the jury, Spearman had ordered Browne and deputy prosecutor Alexis Foster to ask that jurors be excused before any lengthy discussions.When the trial resumed Tuesday, the courtroom got even more contentious. About an hour into Tuesday's proceedings, Foster objected to Browne's "ongoing speaking objections" and asked that he be penalized, according to court records. Browne was fined another $500.

At that point, Browne declared he could not effectively represent his client and that "he no longer wants to participate in this trial," according to court records.

Spearman gave Browne a day to think about how he wanted to proceed.

On Wednesday, Browne filed a document called a "memorandum regarding judicial conduct." In the brief, Browne asserted that various rulings Spearman made throughout the trial violated Briceno's constitutional rights, and that the "court's misapprehension and misapplication of the law — always in favor of the state — demonstrates the court's incompetence to preside over (the) trial."

Browne contended Spearman had interfered with his client's right to a fair trial by, among other things, failing "to even consider the defense argument" and those decisions "thus call the court's faithfulness to the law and professional competence into serious question."

Browne ultimately asked for Spearman to recuse himself.

Spearman declined to consider Browne's brief and continued with testimony. Browne asked for a 10-day delay, which Spearman denied. At that point, Briceno advised "he would like to fire his counsel," according to court records.

Browne again told Spearman he would not continue arguing the case and he was refusing to participate.

Spearman was inclined at that point to call for a mistrial due to defense counsel "behaving improperly" and "obstructing justice," the clerk's notes say.

Foster, however, believed then a mistrial could be avoided and recommended finding Browne in contempt — and also holding him in custody until Thursday.

Ultimately, Spearman didn't believe jailing Browne for the night would "change his behavior." But Browne's position about the judge's handling of the case wouldn't change either. He opted for a recess to consider what to do.

But in the end, it was an offhand comment by a juror during that recess that forced a mistrial.

Though the jury had been advised not to discuss or comment on the case, the bailiff informed the court she had overheard a juror, outside the jury box, express a desire to "punch that defense attorney in the nose," according to courtroom observers.

Spearman declared that Browne's behavior had "thwarted" the administration of justice, creating an "incurable prejudice," the clerk's notes said.